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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Milford District Court

No. 2001-138

ROBERT L. METCALF

v.

SHIRLEY LAWSON

Argued: May 14, 2002

Opinion Issued: June 25, 2002

Robert L. Metcalf, by brief and orally, prose.

Griffin & Owen, P.C., of Amherst (John F. Griffin, Jr. on the brief
and orally) and Cazden Law Office, of Manchester (Elizabeth Cazden on the
brief), for the defendant.

Dalianis, J. The defendant, Shirley Lawson, appeals an order of the Milford District
Court (Ryan, J.) denying her motion to dismiss for lack of personal jurisdiction.
We reverse.

This case arises out of a breach of contract action involving an Internet transaction.
The defendant, a New Jersey resident, advertised a "John Deere 30 mini
excavator" on an Internet auction site known as "eBay." The defendant has
never been physically present in New Hampshire.

Prior to bidding on the excavator, the plaintiff, Robert Metcalf, a New Hampshire
resident, contacted the defendant through electronic mail (e-mail) to inquire about the
products quality. After receiving an e-mail message from the defendant assuring him
that the product was in good condition, he bid on the excavator and won the auction.

Following the auction, the parties exchanged further e-mail messages and at some point
the plaintiff informed the defendant that he was a New Hampshire resident. The plaintiff
then traveled to New Jersey and purchased the excavator. After the transaction was
concluded, the plaintiff experienced problems with the excavator and tried to contact the
defendant, hoping to receive a partial refund. The defendant did not respond.

The plaintiff filed a small claims complaint. The defendant moved for dismissal,
arguing that she was not subject to personal jurisdiction in New Hampshire. The court
denied the motion, stating, in part:

By advertising her John Deere excavator on "E-bay" for sale, the defendant
knew or should hav[e] know[n] that the offer would be extended to possible buyers in all
50 states. The Court finds that by doing business on the Internet, the defendant has the
requisite minimum contact with the State of New Hampshire.

Pursuant to the Federal Due Process Clause, a court may exercise personal jurisdiction
over a non-resident defendant if the defendant has certain minimum contacts with the
forum, "such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice." Alacron, 145 N.H. at 628. "Where, as
here, specific rather than continuous contacts with the forum are the basis for personal
jurisdiction, whether these contacts are sufficient to confer jurisdiction over a foreign
defendant depends upon the relationship between the defendant, the forum, and the
litigation." Id.

In determining if the exercise of specific personal jurisdiction comports with due
process, we examine whether: (1) the contacts relate to the cause of action; (2) the
defendant has purposefully availed herself of the protections of New Hampshire law; and
(3) it would be fair and reasonable to require the defendant to defend the suit in New
Hampshire. Skillsoft Corp. v. Harcourt General, 146 N.H. 305, 308 (2001). All three
factors must be satisfied in order for the exercise of jurisdiction to be constitutionally
proper, Dagesse, 113 F. Supp. 2d at 216, and each factor must be evaluated on a
case-by-case basis. Phelps, 130 N.H. at 171. Because there appears to be no dispute
in this case as to the first factor, we begin by considering if the defendant purposefully
availed herself of the protections of New Hampshires laws.

must have a basis in some act by which the defendant purposefully avails [himself] of
the privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws . . . . Jurisdiction is proper where the contacts proximately
result from actions by the defendant himself that create a substantial connection
with the forum State.

Id. at 109 (quotations and ellipsis omitted). "The focus of this inquiry,
therefore, is not merely whether . . . the defendant[s] contacts might have caused
injury in New Hampshire, but whether these contacts should have given [the] defendant
notice that . . . she should reasonably have anticipated being haled into court in this
State." Alacron, 145 N.H. at 628. The purposeful availment requirement ensures
that a defendant will not be subjected to a forum States jurisdiction based upon
random, fortuitous or attenuated contacts. Dagesse, 113 F. Supp. 2d at 215.

[t]he internet . . . undoubtedly challenges the territorial-based concepts that courts
have traditionally applied to problems of personal jurisdiction[,] . . . it is equally
true that traditional constitutional requirements of foreseeability, minimum contacts,
purposeful availment, and fundamental fairness must continue to be satisfied before any
activity  including internet activity  can support an exercise of personal
jurisdiction.

At one end of the spectrum are situations where a defendant clearly does business over
the Internet. If the defendant enters into contracts with residents of a foreign
jurisdiction that involve the knowing and repeated transmission of computer files over the
Internet, personal jurisdiction is proper. At the opposite end are situations where a
defendant has simply posted information on an Internet Web site which is accessible to
users in foreign jurisdictions. A passive Web site that does little more than make
information available to those who are interested in it is not grounds for the exercise of
personal jurisdiction. The middle ground is occupied by interactive Web sites where a user
can exchange information with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of interactivity and commercial nature
of the exchange of information that occurs on the Web site.

Zippo Mfg. Co., 952 F. Supp. at 1124 (citations omitted).

The Zippo test is not particularly helpful in this case, however, because the
majority of cases using it are based upon a defendants conduct over its own website.
See, e.g., Dagesse, 113 F. Supp. 2d at 219-24; Sports
Authority Michigan, Inc., 97 F. Supp. 2d at 812-14; Zippo Mfg. Co., 952 F.
Supp. at 1125-28. Unlike those cases, the transaction in this case was conducted through
an Internet auction site. In analyzing this issue, we find Winfield Collection, Ltd. v.
McCauley, 105 F. Supp. 2d 746 (E.D. Mich. 2000), instructive.

In Winfield Collection, Ltd., the court held that two sales made to Michigan
residents through eBay, standing alone, were insufficient to find that the defendant
purposefully availed herself of the privileges and protections of the State of Michigan. Id.
at 749. The court took judicial notice that the function of an auction is to permit the
highest bidder to purchase the property offered for sale, and that the choice of the
bidder is beyond the sellers control. Id. Thus, it reasoned that the
defendants sales in the forum were the result of random and attenuated contacts,
insufficient for finding that the defendant purposefully availed herself of the privilege
of doing business in Michigan. Id.

In this case, the defendant did not purposefully avail herself of the privilege of
doing business in New Hampshire by selling her excavator through eBay. Like the defendant
in Winfield Collection, Ltd., she had no control over who would ultimately be the
winning bidder on the excavator, nor could she exclude bidders from particular
jurisdictions. While it is arguable that the defendant may have foreseen the possibility
that a New Hampshire resident might bid on the excavator, foreseeability alone is
insufficient to support the exercise of personal jurisdiction under the Federal Due
Process Clause. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980).
"It is the conduct of the defendant[], rather than the medium utilized by [her], to
which the parameters of specific jurisdiction apply." Millennium Enterprises v.
Millennium Music, LP, 33 F. Supp. 2d 907, 921 (D. Or. 1999).

Nor do the e-mail communications between the parties create sufficient minimum
contacts. First, the e-mail sent by the plaintiff prior to winning the auction cannot be a
ground to support jurisdiction because that contact was the result of his unilateral
activity. Hanson v. Denckla, 357 U.S. 235, 253 (1958). Second, there is
insufficient evidence to establish whether any subsequent e-mails were initiated by the
defendant and when she was made aware that the plaintiff was a New Hampshire resident.

Nothing indicates, therefore, that the defendant intentionally directed her activities
at New Hampshire or was aware she was contracting with a New Hampshire resident until
after the transaction was completed. SeeCompuserve, Inc. v. Patterson, 89
F.3d 1257, 1264-66 (6th Cir. 1996) (defendant knowingly contracted with Ohio company,
directed activities at forum and engaged in ongoing commercial relationship through use of
Internet). Consequently, even if we apply the Zippo test as encouraged by the
plaintiff, we conclude that the defendants contacts through the Internet are
insufficient to warrant the exercise of jurisdiction.

Finally, what appears to be the isolated nature of this transaction and the absence of
any evidence that the defendant was a commercial seller militate against a finding of
jurisdiction. We reject the plaintiffs contention that jurisdiction exists because
the defendant did not plead that she is a non-commercial seller or that she engaged in
only one transaction on eBay. The plaintiff had the burden of offering some affirmative
proof to substantiate facts that relate to personal jurisdiction. Brother Records,
141 N.H. at 324. To the extent the plaintiff attempts to introduce evidence on appeal to
support his claim for jurisdiction, he is barred from doing so because it was not
presented first to the district court. State v. Natalcolon, 140 N.H. 689, 691-92
(1996).

Accordingly, we conclude that the defendant did not engage in sufficient activity in
this State to make it fair and reasonable for purposes of due process to require her to
defend this claim here.